When Should I File a Patent Application?

Generally speaking, the first inventor of a claimed invention has the sole right to file for and receive a patent in the United States. However, there are certain deadlines which an inventor must meet in order to avoid loss of patent rights. In order to preserve rights to acquire a United States Patent, the inventor must file a patent application with the United States Patent and Trademark Office within one year of the first date on which the invention was described in a printed publication, in public use or on sale. The interpretation of the terms "printed publication", "public use" and "on sale" encompass an infinite variety of factual situations and are difficult to generalize here. However, to be on the safe side, the inventor should consider that any time an invention is disclosed to another party or used by the inventor for purposes other than experimentation, the statutory period of one year has begun to toll. An application should be filed within that one year period.

On the other hand, many countries other that the United States require that a patent application be filed prior to the time that the invention is in public use or on sale. Therefore, if you anticipate that you will or may ever be seeking patent protection in countries other than the United States, it will be necessary that an application be filed either in the United States or, under some circumstances, in the other country before the invention has been in public use or on sale, or made publicly known, anywhere in the world. Thus, it is very important to seek advice from a patent attorney immediately if you are now or might eventually be interested in seeking patent protection in countries other than the United States.

Since it is generally the first inventor who is solely entitled to a patent in the United States, it is very important that each inventor maintain good and clear documentation evidencing the dates of creation of various aspects of the invention. While maintaining confidentiality, it is good to have drawings, descriptions, inventive ideas and new thoughts put on paper, preferably in a bound notebook. These tangible drawings and writings should be dated, witnessed, notarized and/or preserved under the government's "Disclosure Document Program" or provisional patent application program.